Its irrelevant whether it is a "PRIVILEGE" or a "RIGHT". Equal Protection applies to both.
Hehe. I thought you were a lawyer? Of course it matters.
CT - I did provide a pretty decent argument as to why I thought legally, that, the 14th Amendment challenge did not apply to Prop 8. It was very detailed I am NOT going to right it all out again. However, and the reason I made my comment earlier in this thread, is that the proponents of Prop 8 should have argued that marriage isn't a fundamental right, and if it were a "fundamental-right", it would only ever be a right of people within the state that have a presumptive, and intrinsic ability to procreate.
If the state has no vested interest in procreation, then it has no business at all in marriage. Since it
is in the marriage business, then it is incumbent on the state to protect this construct; in fact, even restrict it to those who possess the intrinsic ability to realize the benefits that their bonding would impart on the state.
Furthermore, the state contradicts itself with the right to contract in marriage when, and if the state ignores all portions of the contract should the happy couple divorce. If the state ignores the contract in its totality, then the contract isn't fundamental to the marriage.
And finally, Due Process was followed by the state of California. It did not violate the due process clause.
So to recap:
1. If marriage isn't a fundamental right, then there is no valid 14th challenge, and the states are free to regulate marriage as they see fit.
2. If it is a fundamental right, then the court should take the opportunity to properly, and once and for all articulate that marriage should only ever be fundamental to those that posses the intrinsic ability to procreate. A child has a right to know both of his or her parents. They have a right to both a mother, and a Father. Not a partner and another partner.
3. The marriage contract is a contract in every legal definition, yet the state in no fault divorce ignores the contract, therefore the right to contract in marriage is not fundamental to it.
4. Due process was followed.
5. Gender discrimination is akin to any legal definition of individual identity. They are the same in legal terms. It opens up the state to a whole host of marriages.
Tim-